Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, September 26, 2012

Sachs v. Republic of Austria (9th Cir. - Sept. 26, 2012)

Ever buy a Eurail pass while in the United States? Read this. And be glad you still have both your legs.

The opinion's about whether the commercial activity exception to the FSIA applies. Plaintiff wants to sue the Austrian National Railway for losing her legs on the Eurail in Austria, and claims that she can sue them in the United States becasue they distribute tickets here, including the ones she bought. Defendant responds by arguing that this exception doesn't apply because it doesn't directly sell the tickets here, but rather sells them through third party distributors. The Ninth Circuit has to decide who's right.

The panel's hopelessly split. Judge Tallman thinks that a prior Ninth Circuit case (Holy See), which interpreted a different exception to the FSIA (the "tortious act" exception), is controlling and bars a lawsuit here. Judge Bea disagrees, arguing that Holy See is about a different exception and so doesn't apply, but nonetheless agrees that there's no jurisdiction. Judge Gould, by contrast, agrees with Judge Bea that Holy See isn't controlling but doesn't agree that there's no jurisdiction, and so dissents.

Particularly on an issue as significant on this one, and in which reasonable minds can (and do) differ greatly, you might assume that the oral argument was particularly enlightening. But, if so, you'd be wrong. At least here. There wasn't even an oral argument. Whether that's because the parties didn't ask for one (weird) or because the Ninth Circuit didn't think it'd be helpful is unclear. But the fact that Judge Tallman's opinion expressly describes plaintiff's briefs as "scattershot" may suggest that they didn't think that further participation by this Lincoln Law School graduate would be especially helpful in deciding the proper scope of the commercial activity exception to the FSIA.